SACKETT V. EPA AND THE REGULATORY, PROPERTY, AND HUMAN RIGHTS-BASED STRATEGIES FOR PROTECTING AMERICAN WATERWAYS

This Essay introduces a framework of three different strategies for protecting American waterways--the conventional regulatory approach, an alternative property-based approach, and a newer human rights-based approach--and reviews how the dynamic among them will be impacted by the Supreme Court's recent decision in Sackett v. EPA, which curtailed the regulatory reach of the Clean Water Act (CWA). The rights of nature movement has emerged as a human rights-based approach to environmental protection, the public trust doctrine offers a public property-based approach, and the CWA epitomizes the more traditional regulatory approach. Last Term, however, the Court unwound nearly a half century of accepted regulatory practice when it substantially limited the reach of the CWA as a tool for protecting waterways. In Sackett, the majority held that CWA jurisdiction extends to only those waters with a continuous surface connection to a navigable waterway, rather than covering all wetlands, headwaters, and tributaries with a significant nexus to the navigable channel at the bottom of the watershed. The Court made this relatively hard break with fifty years of past interpretations of the 'Waters of the United States' jurisdictional rule, in spite of Congress's clearly stated purpose in enacting the CWA to protect 'the chemical, physical, and biological integrity of the Nation's waters,' and in contravention of the accepted science that had informed the agency's interpretation of this legislative policy. By invoking a new 'clear statement' doctrine during an unusually intense period of legislative paralysis, the Court has unselfconsciously substituted its own judgment for that of the political branches on a scientific matter in which judicial capacity approaches its nadir. The Court's additional suggestion that wetlands regulation is really a matter for the states highlights the majority's apparent inclination that the only federal actor eligible to weigh in on the proper means of protecting the nation's waterways is the Supreme Court itself. The Court's self-aggrandizing move in Sackett will come at a cost for wise environmental governance under all three models reviewed here. By weakening the nation's principal regulatory strategy for protecting them, Sackett will not only harm waterways directly, it will also frustrate all stakeholders in the debate about how best to balance the competing demands we place on them. It will almost certainly inspire greater recourse to the human rights- and property-based alternatives to conventional regulation under the CWA, notwithstanding the opposition these strategies face from regulated parties who critique them as legally unsound and environmental advocates who worry about their ultimate legal trajectory. Sackett thus threatens a critical loss in the arsenal of environmental law to protect waterways and the ecosystems, economies, and communities that depend on them--unless Congress acts quickly to support the overturned rule.
CONTENTS INTRODUCTION I. THE REGULATORY, PROPERTY, AND HUMAN RIGHTS MODELS OF ENVIRONMENTAL LAW A. The Regulatory Strategy B. The Property Strategy C. The Human Rights Strategy II. SACKETT V. EPA [...]